28 April 2014


'Litigiousness in Australia: Lessons From Comparative Law' by Leon Wolff in (2013) 18(2) Deakin Law Review 271 [PDF] asks
How litigious are Australians? Although quantitative studies have comprehensively debunked the fear of an Australian civil justice system in crisis, the literature has yet to address the qualitative public policy question of whether Australians are under- or over-using the legal system to resolve their disputes. On one view, expressed by the insurance industry, the mass media and prominent members of the judiciary, Australia is moving towards an American-style hyper-litigiousness. By contrast, Australian popular culture paints the typical Australian as culturally averse to formal rights assertion. This article explores the comparative law literature on litigiousness in two jurisdictions that have attracted significant scholarly attention - the United States and Japan. More specifically, it seeks to draw lessons from this literature for both understanding litigiousness in modern Australia and framing future research projects on the issue.
Wolff comments
This article seeks to re-open the debate about Australian litigiousness. The rationale for doing so is that the current literature provides only partial and incomplete answers to the question ‘Are Australians too litigious?’ For example, the literature makes it clear that claims of an Australian embracing of American-style excessive legalism are based on unreliable data and selective anecdotes. Quantitative studies amply demonstrate that Australia’s system of civil justice is not in crisis; indeed, litigation rates have been consistently falling since the turn of the 21st century. But litigiousness — or the ‘fondness’ for law — is a cultural question: it concerns a society’s appetite for law; its preparedness to invoke formal law to articulate claims, defend rights and resolve disputes. As such, it is a qualitative, not a quantitative, issue.
The article turns to the comparative law literature for lessons on the possibilities and pitfalls involved in the making of such qualitative claims about litigation and litigiousness. In particular, it highlights the contrasting cases of the United States and Japan. The article argues that, since litigiousness is difficult to measure directly, cultural stereotypes persist in much popular and academic literature — the stereotypes of a rights-obsessed, litigation-loving America and a socially harmonious, litigation-averse Japan. Comparative law scholars, however, strongly contest — and, often, outright reject — these populist impressions.
These comparative law findings have implications for understanding litigiousness in Australia. Two contrasting images currently compete to define Australian identity. The first is that Australians are laid-back, friendly and easy-going, an image projected in such Australian vernacular expressions as a ‘fair go’, ‘she’ll be right, mate’ and ‘no worries’. The second, popularised in the mass media, is that Australians are becoming too ‘American’ in their approach to rights and litigation. On this second view, the Australian legal system is heading for crisis. More than that, Americanisation may spell the decline of society, as citizens prioritise their individual rights over their collective responsibilities. This article explores how commentators seek to correlate these conflicting impressions about Australian identity with Australian litigiousness. It concludes by suggesting that the better view might lie somewhere between these extremes.